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Part 638 (6 NYCRR) (Green Bldg Tax Credit) - Hearing Report, November 2, 2001

Hearing Report, November 2, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of the Proposed Revisions

-to-

Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York
by the Adoption of a new
PART 638, "GREEN BUILDING TAX CREDIT"

HEARING REPORT

/s/
Richard R. Wissler
Administrative Law Judge

November 2, 2001

PROCEEDINGS

The New York State Department of Environmental Conservation ("Department" or "DEC") scheduled public hearings as part of the process to revise Title 6 of the Official Compilation of Codes, Rules and Regulations ("6 NYCRR") of the State of New York by the adoption of a proposed new Part 638. The Department issued a Notice of Proposed Rule Making for distribution and for publication as a legal notice. The notice was published on August 22, 2001, in the New York State Register; on August 15, 2001, in the Department's Environmental Notice Bulletin; and on August 24, 2001, in the following newspapers as shown by their publishers' affidavits: the New York Post, Newsday, The Journal News, the Albany Times Union, the Buffalo News, The Post Standard of Syracuse, the Binghamton Press & Sun Bulletin, The Post-Star of Glens Falls, The Times Herald-Record of Middletown, the Democrat & Chronicle of Rochester, The Niagara Gazette, the Register Star of Hudson, the Watertown Daily Times, and The Recorder of Amsterdam.

In a memorandum received August 23, 2001, Assistant Commissioner James D. Austin requested the services of an administrative law judge ("ALJ") from the Office of Hearings and Mediation Services to conduct the required public hearings.

The aforementioned hearings for the receipt of oral and written statements from the public were held on October 9, 2001, at 1:00 p.m., at the New York State Department of Transportation, Conference Room 310, 47-40 21st Street, Hunters Point Plaza, Long Island City, New York, with seventeen members of the public in attendance; and on October 10, 2001, at 1:00 p.m., at the New York State Department of Agriculture and Markets, Hearing/Training Rooms, 1st Floor, One Winners Circle, Albany, New York, with eight members of the public in attendance.

The published notice also advised that written statements from the public could be submitted to the Department until 5:00 p.m., October 18, 2001.

These proceedings are held according to Part II of Chapter 63 of the Laws of 2000, as well as Environmental Conservation Law ("ECL") Article 1 General Provisions; Article 3 General Functions, Powers, Duties and Jurisdiction; and Article 8 Environmental Quality Review.

Enacted as Part II of Chapter 63 of the Laws of 2000 and codified as Section 19 of Article I of the Tax Law entitled "Green Building Credit", the statute provides for tax credits against various business and personal income taxes to building owners and tenants of eligible buildings and tenant spaces that meet certain "green" standards. Moreover, this section of the Tax Law directs the Department to promulgate and adopt regulations necessary its implementation. In particular, these regulations contain the standards that must be met in order for a building or tenant space to be "green" such that a building owner or tenant might qualify for the credit.

SUMMARY OF STATEMENTS

At each of the public hearings, the Department was represented by Dennis Lucia, Chief of the Implementation and Evaluation Section of the Pollution Prevention Unit, who read a prepared statement summarizing the purpose of the proposed new Part 638.

Public Hearing of October 9, 2001

The Natural Resources Defense Council was represented by Senior Attorney Dale Bryk who spoke on behalf of that organization as well as the United States Green Building Council and the Real Estate Board of New York. She commended the Governor, the Department and the New York State Energy Research and Development Authority ("NYSERDA") for the instant initiative. She then summarized certain items of concern as to the proposed regulation. These included (1) the need to streamline requirements for demonstrating compliance without diluting environmental standards; (2) the need to reduce uncertainty regarding the availability of funds for projects that comply with the regulations; (3) the need to reduce uncertainty in the application process; and (4) in view of the September 11, 2001, attack on the World Trade Center, the need to revise the application process to automatically qualify new development in lower Manhattan that meets the tax credit's substantive requirements.

The firm of Fox & Fowle Architects was represented by its Green Architect Coordinator, Projjal Dutta. He also spoke on behalf of the same organizations Ms. Bryk represented and noted that the regulation was unduly burdensome in certain respects by specifying a certain method to achieve a goal and then requiring testing to see if the goal has been achieved. In his view, either the specification of the method or the testing would be sufficient. Requiring both adds to the cost of compliance.

The North American Insulation Manufacturers Association (NAIMA) was represented by its Vice President for Government and Industry Affairs, George R. Phelps. His organization represents manufacturers of fiberglass insulation. Noting that the proposed regulations restrict the use of fiberglass in air ducts, he pointed to various studies which he asserted demonstrated that fiberglass had an insignificant effect on air quality. This conclusion was subsequently reiterated by Charles Cottrell, Director of Technical Standards for Technical Affairs for NAIMA, who also noted that the probable increased building costs occasioned by the regulation could obviate any benefit from the proposed tax credit.

The Sheet Metal Air Conditioning Contractors National Association of New York State, Inc., was represented by its President, William Freese. He expressed his organization's strongest support for the proposed regulations and asserted that they are comprehensive, fair and workable.

The American Plastics Council was represented by its Director of Northeast Regional Operations, Stephen Rosario. Mr. Rosario also represented the Polystyrene Packaging Council, the Expandable Polystyrene Resin Suppliers Council and the Spray Polyurethane Foam Alliance. While commending the Governor's and the Department's initiative in this area, he noted certain concerns regarding the proposed regulation which would have to be addressed before the plastics industry in New York could support the proposed regulation. The section entitled "Materials, Finishes and New Furniture" [Section 638.7(j)] he asserted was a prescription for the de-selection of plastic building materials. The methodology embraced by the regulation creates a bias against such materials and, moreover, in at least one instance, discriminates in favor of a product no longer manufactured in the United States, that being linoleum. He also noted concern that the regulation relied on the standards articulated in the Leadership in Energy and Environment Design (LEED) program without appropriate consideration being given to the Building for Environmental and Economic Sustainability (BEES) program developed by the National Institute of Standards and Technology (NIST). Rosario also commented on the plastics industry's concern regarding the banning of blowing agents as it relates to ozone depletion. He also asserted that the reporting and compliance provisions of the regulation were overly burdensome.

The Vinyl Institute and the Resilient Floor Covering Institute were represented by Victor R. Struber who commented that vinyl composition floor tile should be listed along with linoleum and cork as alternative resilient flooring under Section 638.7(j) of the proposed regulation.

The Trane Company was represented by Bruce E. Hampson who stated that his company strongly supports a provision to designate HCFC 123 as a permanently approved refrigerant under the proposed regulation.

The Environmental Business Association of New York State, Inc., was represented by its Executive Director, Ira S. Rubenstein. He commented that the regulation should include a provision for a structured annual review so that it could be adapted to any changes in science and technology as well as changes in the regulatory environment. In addition, he noted that a change was needed in the application process to ensure that an application which was precluded from further agency review because it was in some minor way incomplete, would not be returned to the beginning of the application process once the defect was cured.

The Environmental Business Association of New York State, Inc., was additionally represented by the Chair of its Green Buildings Task Force, George P. Aridas, who also, as its Senior Vice President, represented Albanese Development Corporation. He commented that while not perfect, the proposed regulations were workable and should be promulgated. He agreed with Mr. Rubenstein that the application process should be revised so that an essentially complete application which is rejected for some minor defect could be amended without being returned to the beginning of the application process.

Public Hearing of October 10, 2001

The Northeastern Retail Lumber Association was represented by Todd H. Vandervort of The Vandervort Group, LLC. He commented with approval on the provisions of the regulations pertaining to certified wood. Not only retailers, but the environment will benefit by a policy that embraces more than one certification system as is provided for in the proposed regulation.

Written Statements Received

Attached as Appendix A is a list of the written statements from the public submitted to the Department in this matter:

APPENDIX A
Written Statements
Name Affiliation
Stephen Rosario American Plastics Council, Northeast Region, 11 North Pearl Street, Suite 806, Albany, NY 12207, (518) 432-7835, FAX (518) 426-2276
Kenneth J. Pokalsky The Business Council of New York State, Inc., 152 Washington Avenue, Albany, NY 12210, (518) 465-7511, FAX (518) 465-4389
Ira S. Rubenstein Environmental Business Association of New York State, Inc.
George P. Aridas Environmental Business Association of New York State, Inc., and Albanese Development Corporation, 1050 Franklin Avenue, Garden City, NY 11530, (516) 746-6000, FAX (516) 746-0580
Shlomo Chopp Evertile Flooring Company, Inc., Brooklyn, NY 11204, (718) 437-7647
Michael Levy Expandable Polystyrene Resin Suppliers Council, (703) 253-0647
Robert J. Russell Honeywell, P.O. Box 1057, Morristown, NJ 07962-1057
Todd E. Miller Metal Construction Association, 4700 W. Lake Avenue, Glenview, IL 60025-1485, (847) 375-4718, FAX (877) 665-2234
Dave Havnen NYSDEC, Albany, NY
Dale Bryk Natural Resources Defense Council, United States Green Building Council, Real Estate Board of New York, Fox & Fowle Architects
Brian M. Henderson New York State Energy Research and Development Authority, Corporate Plaza West, 286 Washington Avenue Extension, Albany, NY 12203-6399, (518) 862-1090, FAX (518) 862-1091
George R. Phelps North American Insulation Manufacturers Association, 44 Canal Center Plaza, Suite 310, Alexandria, VA 22314, (703) 684-0084, FAX (703) 684-0427
Todd H. Vandervort Northeastern Retail Lumber Association and The Vandervort Group, LLC, 111 Washington Avenue, Suite 403, Albany, NY 12210-2210, (518) 463-3202, FAX (518) 463-7952
Anne M. Ellis Portland Cement Association, 5420 Old Orchard Road, Skokie, IL 60077-1083, (847) 966-6200, FAX (847) 966-9781
Douglas W. Wiegand Resilient Floor Covering Institute, 401 E. Jefferson Street, Suite 102, Rockville, MD 20850, (301) 340-8580, FAX (301) 340-7283
William Freese Sheet Metal Air Conditioning Contractors National Association of New York State, Inc., 555 Broadhollow Road, Melville, NY 11747, (631) 777-4600, FAX (631) 777-1474
Mason Knowles Spray Polyurethane Foam Alliance, 1300 Wilson Boulevard, Suite 800, Arlington, VA 22209, (800) 523-6154, FAX (703) 253-0664
James Wolf The Trane Company, Suite 140, 1501 Lee Highway, Arlington, VA 22209, (703) 525-4015, FAX (703) 525-0327
Noah Budnick Transportation Alternatives, 115 West 30th Street, Suite 1207, New York, NY 10001-4010, (212) 629-8080, FAX (212) 629-8334
Timothy F. Burns The Vinyl Institute, 1300 Wilson Boulevard, Suite 800, Arlington, VA 22209, (703) 253-0700, FAX (703) 253-0672
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